United States District Court, E.D. California
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTION FOR PERMISSION TO SERVE DEFENDANT J.D. FLORENCE BY
PUBLICATION ORDER SETTING INITIAL SCHEDULING CONFERENCE (Doc.
K. OBERTO, UNITED STATES MAGISTRATE JUDGE.
filed this complaint in interpleader on February 1, 2019.
(Doc. 1.) Since then, Plaintiff has experienced issues filing
proof of service on certain Defendants, and only recently
filed requests for entry of default or notices of voluntary
dismissal as to the non-appearing Defendants. (See
Docs. 18, 20, 24, 26, 27, 30, 31, 32, 33, 34, 35.) Plaintiff
has still not served Defendant J.D. Florence, (see
Doc. 35 at 2), and requests leave to serve Defendant J.D.
Florence by publication, (Doc. 39). For the reasons stated
below, the Court DENIES WITHOUT PREJUDICE Plaintiff's
of the Federal Rules of Civil Procedure provides that proper
service can be made by “following state law for serving
a summons in an action brought in courts of general
jurisdiction in the state where the district court is located
or where service is made.” Fed.R.Civ.P. 4(e)(1).
Therefore, California's statute for service by
publication will govern whether such service is proper in
Code of Civil Procedure § 415.50(a)(1) provides, in
pertinent part, that “[a] summons may be served by
publication if upon affidavit it appears to the satisfaction
of the court in which the action is pending that the party to
be served cannot with reasonable diligence be served in
another manner specified in this article and that . . . [a]
cause of action exists against the party upon whom service is
to be made or he or she is a necessary or proper party to the
action.” California Government Code § 6060
requires that the summons be “published in a newspaper
of general circulation for the period
by publication is appropriate only where, after reasonable
diligence, the defendant's whereabouts and his dwelling
place or usual place of abode cannot be ascertained.
Watts v. Crawford, 10 Cal.4th 743, 749 n.5 (1995).
However, service by publication is a “last resort,
” so the courts require a plaintiff “to show
exhaustive attempts to locate the defendant.”
Watts, 10 Cal.4th at 749 n.5. “Reasonable
diligence” in attempting to serve by other methods
[A] thorough, systematic investigation and inquiry conducted
in good faith . . . . A number of honest attempts to learn
defendant's whereabouts or address by inquiry of
relatives, friends, and acquaintances, or of an employer, and
by investigation of appropriate city and telephone
directories, the voters' register, and the real and
personal property index in the assessor's office, near
the defendant's last known location, are generally
sufficient. These are likely sources of information, and
consequently must be searched before resorting to service by
publication. However, the showing of diligence in a given
case must rest on its own facts and neither single formula
nor mode of search can be said to constitute due diligence in
Kott v. Superior Court, 45 Cal.App.4th 1126, 1137-38
(1996) (internal citations and quotations omitted). When
attempting to effect personal service, a person attempting to
effect service is not required to “exhaust all avenues
of obtaining a current address” once he is informed
that a defendant no longer lives at a residence. Ellard
v. Conway, 94 Cal.App.4th 540, 545 (2001).
Plaintiff's Motion Fails to Comply with Rule 4
Plaintiff Has Not Established by Affidavit the Existence of a
Valid Cause of Action Against J.D. Florence
or that J.D. Florence is a Necessary or Proper
California law, “[f]or the purpose of service by
publication, the existence of a cause of action is a
jurisdictional fact.” Harris v. Cavasso, 68
Cal.App.3d 723, 726 (1977). “The requesting party
must submit an affidavit containing a statement of
some fact that would be legal evidence that the cause of
action exists for the court to have jurisdiction to order
service by publication.” Integon Preferred
Insurance Company v. Camacho, No. 1:16-cv-01496-AWI-SAB,
2017 WL 1351704, at *2 (E.D. Cal. Mar. 24, 2017) (emphasis
added) (citing Harris, 68 Cal.App.3d at 726)).
“When jurisdiction is sought to be established by
constructive service, the statutory conditions for such
service must be strictly complied with or the judgment is
subject to collateral attack.” Donel, Inc. v.
Badalian, 87 Cal.App.3d 327, 334 (1978). Thus, when
applying for service by publication, the requesting party
must attach an affidavit “containing a statement of
facts to establish that a ‘cause of action exists
against the party upon whom service is to be made or he or
she is a necessary or proper party to the action.'”
Integon, 2017 WL 1351704, at *2 (quoting Cal. Code
Civ. P. § 415.50(a)(1)).
Plaintiff's motion contains very little information
regarding Defendant J.D. Florence, aside from the fact that
he is a named defendant in the complaint. (See Doc.
39.) This is insufficient to justify service by publication.
See Integon, 2017 WL 1351704, at *2. Plaintiff must
attach an affidavit to the request for service by publication
setting forth facts establishing a cause of action against
Defendant J.D. Florence, or facts establishing that Defendant
J.D. Florence is a necessary or proper party. See
Id. (“The affidavit filed in support of the motion
for substitute service must contain independent evidentiary
support in the form of a sworn statement of facts to support